Contract
Exhibit
10.4
This Consulting Agreement
("Agreement") is effective as of October 1, 2009 between PEMBROKE COMMUNICATIONS
CORP., Xxxxx Xxxxxx Xxxxxx Xx. 00, Xxxxxxxxx, Xxxxxx, República de Panamá (“Pembroke” or
Consultant”), and OFFSHORE PETROLEUM CORP., a Delaware Company located at 000
Xxxx Xxxxxxx Xxxx., Xxxxx #0000, Xxxx Xxxxxxxxxx, Xxxxxxx 00000
(“OFFSHORE,” “Client” or the “Company”), in connection with the
rendering by Pembroke to OFFSHORE of consulting services, as
described herein below, for and in consideration of the compensation
described.
WHEREAS, Client desires to
retain Consultant to perform certain consulting services as described herein and
PEMBROKE is willing to render and provide such service to the
Company.
THEREFORE, in consideration of
the mutual agreements and covenants set forth in this Agreement, and intending
to be legally bound hereby, the parties agree as follows:
1. Engagement of Consultant.
The Company hereby engages and retains Consultant to render to the
Company the consulting services (the “Consulting Services”) described in
paragraph 2 hereof for the period commencing on the effective date of
this Agreement and ending on September 30, 2011 (the "Consulting
Period").
2. Description of Consulting
Services. The Consulting Services rendered by Consultant hereunder shall
consist of consultations with management of the Company as such management may
from time to time require during the consulting period. Such consultation with
management shall be with respect to financial public relations, business
promotion, business growth and development, including mergers and acquisitions,
and general business consultation. The Consulting Services may
include the Company's relationship with the financial community and its
securities holders, the preparation and distribution of periodic reports and
news releases to keep existing shareholders informed about the Company’s
activities, maintaining regular communications with stockholders and brokers,
and such other matters as may be agreed upon between the Company and
Consultant.
3. Extent of Consulting Services.
Client agrees that, during reasonable periods of time prior
to and during which Client is deemed to be in the process of raising capital
and/or offering securities, as defined under the United States Securities Act of
1933 (the “Securities Act”), Consultant will suspend its consulting services to
the extent such consulting services may affect the market price of Client’s
securities.
4. Compensation for Consulting
Services. The Company shall pay to Consultant for the
Consulting Services rendered hereunder, 1,500,000 shares of restricted common
stock of the Company (“Shares”) which shall be earned in the following manner:
1,500,000 shares will be earned by the Consultant in equal installments of
500,000 shares on April 1, 2010, October 1, 2010, and April 1,
2011. Said 1,500,000 shares of restricted common stock of the Company
will be tendered to Consultant in three certificates on execution of this
Agreement with legends reflecting the earned dates; provided, however, that
Consultant must return any unearned shares upon termination of this
Agreement.
5. Restrictions. Consultant
recognizes that there is no current market for the Shares; that there can be no
assurances that such a market will exist any time in the future and accordingly
it may not be able to sell or dispose of any of the Shares even if the
Consultant had held them for a number of years; that its right to transfer the
Shares will be restricted by federal and state securities laws and a legend to
this effect will be placed on the certificates representing the Shares if the
Shares are issued prior to being registered; that such laws impose strict
limitations upon such transfer; and although the Company is undertaking to file
a registration statement as set out herein there is no guarantee that said
registration statement will become effective and the Company, other than its
undertaking, is under no obligation in connection with the subsequent transfer
thereof by the Consultant or to aid the Consultant in obtaining an
exemption from such registration.
The
following representations and warranties of the Consultant, among other things,
pertain to U.S. securities laws and the sale or transfer in the United States of
the Shares. The Consultant represents and warrants to the Company as
follows:
The
Consultant understands that prior to the registration of the Shares in the U.S.,
such securities may not be offered or sold, directly or indirectly, in the
United States to or, or for the account or benefit of, a “U.S. Person” (as
defined in Rule 902 of Regulation S promulgated under the Securities Act), which
definition includes, but is not limited to: (1) any natural person resident in
the United States, (2) any partnership or company organized under the laws of
the United States, (3) any estate or trust of which the executor or
administrator or trustee, respectively, is a U.S. person, (4) any discretionary
or non-discretionary account held by a dealer or fiduciary for the benefit or
account of a U.S. person and any partnership or company organized or
incorporated under the laws of a foreign jurisdiction by a U.S. person
principally for the purpose of investing in securities not registered under the
Securities Act (a “U.S. Person”) until registered under the Securities Act and
the securities laws of all applicable states unless an exemption from such
registration requirements is available. The Consultant agrees not to engage in
any hedging transaction involving of the Shares.
The
Consultant understands that the Company may implement procedures to ensure that
the Shares may not be delivered within the United States other than
in offerings deemed to meet the definition of an “offshore transaction” pursuant
to Rule 902(h) of Regulation S promulgated under the Securities Act or an
exemption from registration under the Securities Act is available.
Consultant
recognizes that, a restrictive legend in substantially the following form shall
be placed on each such certificate evidencing any of the Shares:
The
shares represented by this Certificate have not been registered under the United
States Securities Act of 1933, as amended (the “Securities Act”) or under any
applicable state securities laws (the “State Laws”). The shares have
been acquired for investment purposes and may not be sold, transferred, pledged
or otherwise disposed of except in compliance with the registration requirements
of the Securities Act and applicable State Laws, or pursuant to applicable
exemptions from such registration requirements which may include sale through a
Designated Offshore Securities Market. Further, unless the shares
represented by this Certificate have been registered under the Securities Act,
the sale, transfer, pledge or other disposition of these shares in the United
States is prohibited except in accordance with the provisions of Regulation S
(Rule 901 through 905 and the Preliminary Notes) promulgated under the
Securities Act.
Any
transfer of the Shares on the books and records of the Company will only be
affected in accordance with such legend.
The
Consultant undertakes and agrees that it will not offer or sell the Shares in
the United States unless such Shares are registered under the U.S. Securities
Act and the securities laws of all applicable states of the United States or an
exemption from such registration requirements is available, and further that it
will not resell the Securities in any jurisdiction, except in accordance with
the provisions of applicable securities legislation, regulations, rules,
policies and orders and stock exchange rules.
2
(i) Registering
the Shares The Company will record the Shares
issued to the Consultant in the Company’s share ledger and does not plan
to certificate the Shares until they are registered under the Securities and
Exchange Act of 1933 as amended.
(ii) Registration Company undertakes to
include the Shares issued to the Consultant in a re-sale registration statement
on Form S-1 to be filed under the provisions of the Securities
Act. The Shares may be recorded with the Company’s transfer agent,
Olde Monmouth Stock Transfer Co. Inc. These Shares may not be transferred prior
to (a) such registration statement being made effective by the SEC or (b) the
consent of the board of directors of the Company if an exemption from
registration under the Act and any applicable State regulation is
available.
6. Non Exclusivity of Consultants
Undertakings. The Company expressly understands and agrees that
Consultant shall not be prevented or barred from rendering services of the same
nature as or a similar nature to those described in this Agreement, or of any
nature whatsoever, for or on behalf of any person, firm, Company, or entity
other than the Company. The Company understands and accepts that
Consultant is currently providing consulting services to other public companies
and will continue to do so during the term of this Agreement. The
Company also understands and accepts that Consultant will seek new clients to
provide its consulting services to during the term of this
Agreement.
7. Termination of Relationship.
This Agreement shall, unless sooner terminated as provided herein below,
continue for the duration of the Consulting Period as defined in paragraph 1
herein above. Such term shall be renewed upon mutual agreement of the parties.
Either Consultant or the Company may terminate this Agreement with or without
cause upon thirty (30) days written notice to the other provided the Company may
not give notice of termination prior to December 31, 2009.
In the event of Termination, Consultant
shall be entitled to shares earned prior to the date of the termination of this
Agreement (ie: 30 days after notice is given) and shall return share
certificates representing any un-earned Shares. The Company may
cancel any un-earned Shares. .
8. Miscellaneous.
A. Notices. Any notice or
other communication required or permitted by any provision of this Agreement
shall be in writing and shall be deemed to have been given or served for all
purposes if delivered personally or sent by a nationally recognized
international courier such as FedEx.
B. Entire Agreement. This
Agreement constitutes the entire agreement between the parties relating to the
subject matter of this Agreement and supersedes all prior discussions between
the parties. There are no terms, obligations, covenants, express or
implied warranties, representations, statements or conditions other than those
set forth in this Agreement. No variations or modification of this
Agreement or waiver of any of its terms or provisions shall be valid unless in
writing and signed by both parties.
C. Amendment. This Agreement
shall not be modified or amended except by written agreement of the parties
hereto.
D. Governing Law. Each of the
provisions of this Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware.
X. Xxxxx. No failure or delay by
any party in exercising any right, power or privilege under this Agreement shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege.
3
F. Severability. Should any part
of the Agreement for any reason be declared invalid or unenforceable, such
decision shall not affect the validity or enforceability of any remaining
portion, which remaining portion shall remain in force and effect as if this
Agreement had been executed with the invalid or unenforceable portion thereof
eliminated and it is hereby declared the intention of the parties hereto that
they would have executed the remaining portion of this Agreement without
including therein any such part, parts or portion which may, for any reason, be
hereafter declared invalid or unenforceable. Should any material term
of this Agreement be in conflict any laws or regulations, the parties shall in
good faith attempt to negotiate a lawful modification of this Agreement which
will preserve, to the greatest extent possible, the original expectation of the
parties.
G. Arbitration. Any
controversy or claim arising out of or relating to this Agreement, or the breach
thereof, shall be settled by arbitration in Buffalo, New York in accordance with
the rules of the American Arbitration Association, and the judgment upon the
award rendered may be entered in any court having jurisdiction
thereon.
H. Counterparts. This
Agreement may be executed in multiple counterparts, each of which shall be
deemed an original, and all of which together shall constitute one and the same
instrument. Execution and delivery of this Agreement by exchange of
facsimile copies bearing facsimile signature of a party shall constitute a valid
and binding execution and delivery of this Agreement by such
party. Such facsimile copies shall constitute enforceable original
documents.
In Witness whereof, the
undersigned parties hereto have executed this Agreement on the dates set forth
opposite their respective signatures.
|
By:
|
/s/
Xxxx Xxxxxxxxx
|
|
PEMBROKE
COMMUNICATIONS CORP.
|
|
|
By:
|
/s/
Xxxxxx Xxxx
Xxxxxxxx
|
4
